United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Johnston United States Magistrate
Levi Bierwiler, a federal prisoner proceeding in forma
pauperis and without counsel, filed a Complaint (Doc. 1)
pursuant to 42 U.S.C. § 1983 alleging Defendant Goodwin
discriminated against him based upon race by confiscating
playing cards on December 25, 2015. (Doc. 1.) Because Mr.
Bierwiler was a federal prisoner at the time his allegations
arose, his claims are construed as being brought pursuant to
pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
filed a motion for summary judgment arguing that Mr.
Bierwiler cannot bring a Bivens claim against him as
a correctional officer at a privately owned prison. (Doc.
33.) The Motion for Summary Judgment should be granted and
this matter dismissed.
judgment is appropriate if there are no genuine issues of
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). The party moving for
summary judgment has the initial burden of showing there is
no genuine issue of material fact. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970). If the moving party
makes a prima facie showing that summary judgment is
appropriate, the burden shifts to the opposing party to show
the existence of a genuine issue of material fact.
Id. On summary judgment, all inferences should be
drawn in the light most favorable to the party opposing
summary judgment. Id. at 159.
is material if it might affect the outcome of the suit under
the governing law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute about a material fact is
genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
notice provided on January 12, 2018 (Doc. 38), Mr. Bierwiler
was advised of the requirements for opposing a motion brought
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.
1998)(en banc); Klingele v. Eikenberry, 849 F.2d 409
(9th Cir. 1988).
Bierwiler was convicted in federal court and sentenced on
February 24, 2017 to the custody of the Bureau of Prisons.
See United States v. Bierwiler, 15-CR-00053-BLG-SPW,
Doc. 80. Mr. Bierwiler was housed at Crossroads Correctional
Center (“Crossroads”) in Shelby, Montana in
December 2015. (Statement of Undisputed Facts
(“SUF”), Doc. 37 at ¶ 5.) At all times while
he was housed at Crossroads, Mr. Bierwiler was a federal
prisoner in the custody of the United States Marshals
Service. (SUF, Doc. 37 at ¶ 6.)
December 25, 2015, Officer Goodwin confiscated playing cards
on the grounds that they were in excess of the prison's
allowable property limits. Mr. Bierwiler alleges Officer
Goodwin targets Native Americans and Mexican in performing
cell searches such as the one done on December 25, 2015 and
that the excess cards were confiscated because of race.
(Complaint, Doc. 1.)
is a private prison where Mr. Bierwiler was incarcerated
under an agreement with the United States Marshals. Even
though the Crossroads' employees are private individuals,
Mr. Bierwiler was in federal custody while incarcerated at
Crossroads, therefore Defendant is considered a federal actor
rather than a state actor for purposes of this case.
Pollard v. GEO Group, Inc., 607 F.3d 583, 588-89
(9th Cir. 2010), rev'd on other grounds sub nom.
Minneci v. Pollard, 565 U.S. 118 (2012); see also
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 940-41
(1982); Florer v. Congregation Pidyon Shevuyim,
N.A., 639 F.3d 916, 922 (9th Cir. 2011).
an action for constitutional violations committed by federal
actors can be brought under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971). The United States Supreme Court, however, has made
clear that a prisoner cannot assert a Bivens claim
for damages against private prison employees or the
corporations who own and operate private correctional
facilities. Minneci, 565 U.S. 118; Correctional
Services Corp. v. Malesko, 534 U.S. 61 (2001).
Minneci, the plaintiff was a federal prisoner,
housed at a facility operated by a private company, who
sought relief against its employees for the deprivation of
adequate medical care. Minneci, 565 U.S. at 121. The
Supreme Court declined to extend Bivens in this
situation, because the plaintiff ...